Fee Culture vs. Free Culture

Allan Gregory (a 3rd year law student and my summer intern at the Berkman Center) and I have spent a lot of time this summer looking at the history of copyright and royalties, mostly in respect to music. What I’ve noticed in the course of this work is how much commercial interests of one kind or another (and in some cases we’re talking about a single party with a legitimate beef who had been screwed over one too many times — Victor Herbert, for example) push law and enforcement across new lines that quickly harden. The free space on the far sides of those lines ratchets downward with each advance of creators armed by the law as rights-holders. At a certain point, it disappears.

To see how extreme this can get, visit here, or Bemuso.com, which does an amazing job making sense of the music business in the U.K., which restricts music usage far more than anything like it in the U.S. For example,

Steve Finnigan, Chief Constable in Lancashire, England seems to have gotten himself in trouble with the Performing Right Society (PRS). Apparently there’s been music playing in police stations where people can hear it, and someone at the PRS noticed that no one has paid any licensing fees for it. The PRS is responsible for collecting performance royalties on behalf of composers and publishers in the UK.

In addition to the music that allegedly plays in 34 separate police stations, they’re also being accused of allowing employees to listen to it in gyms and at office parties. They’ve even gone so far as to use unlicensed music for entertaining the public when they get put on hold while calling in.

Since Lancashire Constabulary’s head of legal services, Niamh Noone, instructed officers not to discuss what was being played with PRS representatives, the agency decided to take them to court in order to collect back royalties they believe are owed and arrange for proper licensing so that future royalties may be collected in a more timely manner.

It’s an outstanding series. If you care about journalism, free speech, Free Culture, fair use and other values that transcend the AP’s parochial interests, it’s required reading.

While you do, remember that the AP is primarily an association of newspapers, formed early in the Industrial Age, and very much a creature of it. They are also, like many other associations representing originators of work about which usage rights are ambiguous, in essence a big legal department: quick to litigate and slow to comprehend the larger and changing contexts in which it now finds itself. Litigators are soldiers, not peacemakers. They don’t much care for olive branches (such as the one I extended last month).

Still, they’re not entirely unfriendly. Writes Zachary,

The AP would like to encourage use of its content — even full content — under terms that might not be so different from the APIs released by The New York Times and NPR. (Then again, it might be very different. The AP thus far hasn’t said what restrictions it will attach to its APIs.) I asked Kasi for an example, and he said that a mobile developer who wanted to include the AP’s articles or videos in an iPhone application could do so, probably without paying for access. Addressing the hypothetical developer, he said, “If this becomes a runaway success, I want to be part of this kind of business arrangement with you. In the meantime, if you want to experiment, go at it.”

In other words, “soon as there’s money in it, we want a piece of it”. In fact my proposal is for exactly that. Except it won’t be on their terms. It will be on ours, as fellow participants in what Zachary calls “the web’s circulatory system”.